They may not mean what you think! (Legal meanings of “molest” and “molestation”)

In everyday Spanish usage, molestar means “to bother,” “to disturb,” “to cause annoyance” or “to be a nuisance.” Thus me molesta cuando hablas con la boca llena simply means “it bothers me when you talk with your mouth full.” That’s why the “Do not disturb” signs in hotels in Spain say No molestar.

But “molest” and “molestation” have specific legal meanings that translators and legal professionals who use English can’t afford to ignore. Moreover, the terms denote something radically different in British and American legal usage, with a potential for prompting serious translation mistakes.

In legal contexts, British usage of “molest” and “molestation” is close to the Spanish meaning. For example, in cases of domestic abuse, under the Family Law Act 1996 in force in England and Wales, a judge may issue a specific type of injunction known as a “non-molestation order” to a spouse or partner (the “respondent”) that enjoins him or her from harassing or sometimes even having contact with the other spouse or partner. Some of the standard prohibitions found in a non-molestation order read as follows:

The respondent, [YY], must not use or threaten violence against the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not intimidate, harass or pester the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not telephone, text, email or otherwise contact or attempt to contact the applicant, [XX], [except for the purpose of making arrangements for contact between the respondent and the children of the family] / [except through [his]/[her] solicitors [insert name, address and telephone number]].

The respondent, [YY], must not damage, attempt to damage or threaten to damage any property owned by or in the possession or control of the applicant, [XX], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not damage, attempt to damage or threaten to damage the property or contents of [the family home]/[insert property], and must not instruct, encourage or in any way suggest that any other person should do so.

The respondent, [YY], must not go to, enter or attempt to enter [the family home] / [insert property] / [any property where he knows or believes the applicant, [XX], to be living], and must not go [within [insert] metres of it] / [along the road(s) known as [insert]], except that the respondent may [go to the property [without entering it]] / [go along the road(s) known as [insert]] for the purpose of collecting the children of the family for, and returning them from, such contact with the children as may be agreed in writing between the applicant and the respondent or in default of agreement ordered by the court.

In the US this type of injunction is often referred to generically as a “restraining order” or “order of protection.” In some states similar orders are known as “domestic violence protection orders” or “DVPOs,” “stay away orders” or “no contact orders.” But never are they referred to as “non-molestation orders,” as they are known in England and Wales.

Indeed, in American legal language “molestation” most often has quite a different meaning, being a criminal law term denoting a type of sex crime against children, i.e., “child molestation,” whose definition may vary in the criminal codes of each state, but that generally refers to a “wide variety of activities perpetrated against children by adults that have sexual undertones. While sexual activity clearly falls within the scope of child molestation, the crime also applies to other forms of inappropriate touching, including non-penetrating contact, exposure of a minor to pornography, or convincing a minor to view sexual acts.”** In this context, “to molest” is to commit some sort of sexual abuse, and the person committing such an offense is known as a “child molester.”

Thus translating “molest” and “molestation” requires taking into account which of these two meanings is intended. The “non-molestation” order of the Family Law Act 1996 is similar to the orden de alejamiento issued by Spanish courts and might provide a valid translation. In contrast “child molestation” may perhaps be rendered as “abusos sexuales a menores” or with a similar expression.

* https://www.judiciary.uk/wp-content/uploads/…orders…/non-molestation-order.doc

** https://www.justia.com/criminal/offenses/sex-crimes/child-molestation/

How to Read an Act of the UK Parliament

Translators and legal professionals often have to deal with original sources and searching for a quote from UK legislation may at first be confusing to the uninitiated. The text of all acts of Parliament are available from two main sources, the “Official home of UK legislation, revised and as enacted 1267-present” at www.legislation.gov.uk, and the British and Irish Legal Information Institute (BAILII) at www.bailli.org . As an example, let’s look at the primary source of UK company law, the Companies Act 2006 (http://www.legislation.gov.uk/ukpga/2006/46/introduction) to see how it’s organized.

Under the Crown Seal the first thing that appears is the law’s short title, “Companies Act 2006” with its official citation underneath. Here “2006 CHAPTER 46” indicates that this was the 46th act passed by Parliament in 2006. There follows the act’s long title, which is really a description of the purpose of the law:

 An Act to reform company law and restate the greater part of the enactments relating to companies; to make other provision relating to companies and other forms of business organisation; to make provision about directors’ disqualification, business names, auditors and actuaries; to amend Part 9 of the Enterprise Act 2002; and for connected purposes.

The date on the right, underneath the long title is the date of enactment when the act went into force. To the left you can check the geographical extent of the law.* Then comes the enacting formula:

 BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows…

 “Lords Spiritual and Temporal” is obviously a reference to the House of Lords, and the formula basically translates as Queda promulgada por su majestad la Reina la siguiente ley, con la aprobación y la autoridad de la Cámara de los Lores y la Cámara de los Comunes reunidas en el Parlamento. (Spanish laws are also enacted by royal assent –sanción real– in similar terms: Felipe VI, Rey de España, a todos los que la presente vieren y entendieren, Sabed: Que las Cortes Generales han aprobado y Yo vengo en sancionar la siguiente Ley). Older pieces of UK legislation then have a preamble with its “whereas clauses” describing the purpose of the act.

The main body of an act of Parliament is divided into numbered sections with headings summarizing their content. Subsections of sections have numbers in parentheses (called “brackets” in BrE), i.e., (1), (2), etc. Subsections are followed by paragraphs marked (a), (b), etc. Paragraphs may also have subparagraphs designated by small-cap Roman numerals, (i), (ii), (iii), etc. And, finally, an act of Parliament is generally followed by a series of schedules containing definitions, explanations, detailed provisions, amendments and repeals.

 

*Not all acts of Parliament are applicable throughout the entire UK, as explained here: https://rebeccajowers.com/2016/09/15/varieties-of-legal-english-in-the-uk/

Varieties of Legal English in the UK

My students of Legal English often ask me why I label certain British legal terms as “UK” and others as “E&W” (England and Wales). It is important to note that the legal terminology of England and Wales often differs from the terminology of the rest of the UK, especially Scotland, but also sometimes Northern Ireland. England and Wales share the same law, modern Scots law is often described as “hybrid” (having its roots in civil law), and Northern Ireland likewise has its own legal system. Moreover, the laws enacted by the UK Parliament in London are not necessarily applicable throughout the whole United Kingdom. When accessing UK legislation (www.legislation.gov.uk), one of the “Advanced Features” available under the “Content” tab  says “show geographical extent.” If we check “show geographical extent” for the Companies Act 2006, a small purple banner appears with the message “E+W+S+N.I.,” indicating that this piece of legislation is applicable  throughout the UK. If we do the same for the Civil Procedure Act 1997, the little purple banner says “E+W,” since that law is only applicable in England and Wales.

As examples of just how different English and Scottish legal terms can be, in civil procedure the English “claimant” (demandante—“plaintiff” in the US) is the “pursuer” in Scotland, while the defendant (demandado) is the “defender.” Criminal cases that are prosecuted in England and Wales by a “Crown Prosecutor” (fiscal) are prosecuted in Scotland by a “Procurator Fiscal.” And the English crimes of “manslaughter” (homicidio involuntario), “burglary” (robo con fuerza en las cosas) and “arson” (incendio provocado) are known as “culpable homicide,” “house-breaking” and “fire-raising” north of the Anglo-Scottish border.

Differences in Case Citation in the US and UK

Differences in court case citation in the US and UK (and in other Commonwealth countries) may sometimes be a source of confusion. As an example, in the US a civil action is generally styled “Smith v. Jones,” Smith being the plaintiff (demandante, now known as the claimant in England and Wales) and Jones the defendant (demandado). The case name is read aloud as “Smith versus Jones.” In England that same civil case would be written in the same way (Smith v. Jones), but would be read aloud as “Smith and Jones.”

Criminal cases in the US are easily identified by the fact that the first party, represented by the prosecutor or district attorney (fiscal), is the government, whether federal or state, as in the “United States v. Jones” or the “People of the State of Michigan v. Jones.” Here , as in civil cases, “v.” is also read aloud as “versus.” In England and in other Commonwealth countries criminal cases are prosecuted by the Crown in the name of the monarch, and therefore this same  case would be styled “R v. Jones,” “R” standing for the Latin “Regina” (queen) or “Rex” (king). However, the case name would be read aloud as “The Queen against Jones” (and not “The Queen versus Jones”).

In the US “v.” is sometimes read aloud as “vee,” rather than “versus” (pronouncing “v.” like the letter “v”), although legal linguist Bryan Garner cautions against this practice in his “Garner’s Dictionary of Legal Usage” (Oxford, 2011).

Read more here:

https://web.library.uq.edu.au/node/1712/7

http://web5.uottawa.ca/www2/rl-lr/eng/legal-citations/1_2-content_form_function.html

Legal English in the US and UK: Translating escrito

The term escrito is widely used in Spain to refer to pleadings and other documents that lawyers file in court, and the term “brief” is often used to translate escrito in this context: escrito de demanda (“brief of complaint”), escrito de apelación (“appellate brief”). This translation may actually be appropriate for American audiences since in US usage a brief is simply “a written statement setting out the legal contention of a party in litigation.”* However, it should be noted that “brief” has a very specific meaning in English law that would preclude its being used in this context for UK readers. In effect, in England and Wales “brief” refers specifically to a solicitor’s instructions to a barrister, defined as “a document or bundle of documents by which a solicitor instructs a barrister to appear in court,”** and it can only be appropriately used in that context.

*Black’s Law Dictionary, 8th ed., 2004.

**Oxford Dictionary of Law, 6th ed., 2006.